The following definitions apply under this Article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) Statements Which Are Not Hearsay. The following statements are not hearsay and are admissible for the truth of the matter asserted:
(A) Prior Inconsistent Statement Made Under Oath or Penalty of Perjury at Certain Proceedings. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement which is (i) inconsistent with the declarant’s testimony; (ii) made under oath before a grand jury, or at an earlier trial, a probable cause hearing, or a deposition, or in an affidavit made under the penalty of perjury in a G. L. c. 209A proceeding; (iii) not coerced; and (iv) more than a mere confirmation or denial of an allegation by the interrogator.
(B) [For a discussion of prior consistent statements, which are not admissible substantively under Massachusetts law, see Section 613(b), Prior Statements of Witnesses, Limited Admissibility: Prior Consistent Statements.]
(C) Identification. A statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement.
(2) Admission by Party-Opponent. The following statements offered against a party are not excluded by the hearsay rule:
(A) The party’s own statement.
(B) A statement of which the party has manifested an adoption or belief in its truth.
(C) A statement by a party’s agent or servant admitted against the principal to prove the truth of facts asserted in it as though made by the principal, if the agent was authorized to make the statement or was authorized to make, on the principal’s behalf, true statements concerning the subject matter.
(D) A statement by a party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.
(E) A statement of a coconspirator or joint venturer made during the pendency of the cooperative effort and in furtherance of its goal when the existence of the conspiracy or joint venture is shown by evidence independent of the statement.
Subsection (a). This subsection is taken nearly verbatim from Commonwealth v. Baker, 20 Mass. App. Ct. 926, 928 n.3, 479 N.E.2d 193, 195 n.3 (1985), quoting with approval the definition of a “statement” contained in Fed. R. Evid. 801(a) and Proposed Mass. R. Evid. 801(a).
To be hearsay, the statement, whether verbal or nonverbal, must be intended as an assertion. See Bacon v. Charlton, 61 Mass. 581, 586 (1851) (distinguishing between groans and exclamations of pain, which are not hearsay, and anything in the nature of narration or statement).
“[C]onduct can serve as a substitute for words, and to the extent it communicates a message, hearsay considerations apply.” Commonwealth v. Gonzalez, 443 Mass. 799, 803, 824 N.E.2d 843, 848 (2005). “[O]ut-of-court conduct, which by intent or inference expresses an assertion, has been regarded as a statement and therefore hearsay if offered to prove the truth of the matter asserted. See Bartlett v. Emerson, [73 Mass. 174, 175–176] (1856) (act of pointing out boundary marker inadmissible hearsay).” Opinion of the Justices, 412 Mass. 1201, 1209, 591 N.E.2d 1073, 1077 (1992) (legislation that would permit the Commonwealth to admit evidence of a person’s refusal to take a breathalyzer test violates the privilege against self-incrimination because it reveals the person’s thought process and is thus tantamount to an assertion).
Subsection (b). This subsection is identical to Fed. R. Evid. 801(b). While no Massachusetts case has defined “declarant,” the term has been commonly used in Massachusetts case law to mean a person who makes a statement. See, e.g., Commonwealth v. DeOliveira, 447 Mass. 56, 57–58, 849 N.E.2d 218, 221 (2006); Commonwealth v. Zagranski, 408 Mass. 278, 285, 558 N.E.2d 933, 938 (1990). See also Webster’s Third New International Dictionary 586 (2002), which defines “declarant” as a person “who makes a declaration” and “declaration” as “a statement made or testimony given by a witness.”
Subsection (c). This subsection is derived from Commonwealth v. Cohen, 412 Mass. 375, 393, 589 N.E.2d 289, 301 (1992), quoting McCormick, Evidence § 246, at 729 (3d ed. 1984), and Fed. R. Evid. 801(c). See Commonwealth v. Cordle, 404 Mass. 733, 743, 537 N.E.2d 130, 136 (1989); Commonwealth v. Randall, 50 Mass. App. Ct. 26, 27, 733 N.E.2d 579, 581 (2000). See also Commonwealth v. Silanskas, 433 Mass. 678, 693, 746 N.E.2d 445, 460 (2001) (“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted”); G.E.B. v. S.R.W., 422 Mass. 158, 168, 661 N.E.2d 646, 654 (1996) (“Hearsay is an ‘extrajudicial statement offered to prove the truth of the matter asserted’”), quoting Commonwealth v. Keizer, 377 Mass. 264, 269 n.4, 385 N.E.2d 1001, 1004 n.4 (1979); Commonwealth v. DelValle, 351 Mass. 489, 491, 221 N.E.2d 922, 923 (1966) (“The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted”). If a witness at trial affirms the truth of a statement made out-of-court, the witness adopts it and it is not hearsay. Commonwealth v. Sanders, 451 Mass. 290, 302 n.8, 885 N.E.2d 105, 117 n.8 (2008). Whether the witness has adopted his or her out-of-court statement is a question of fact for the jury and not a preliminary question for the judge. Id. at 302, 885 N.E.2d at 117.
“The theory which underlies exclusion is that with the declarant absent the trier of fact is forced to rely upon the declarant’s memory, truthfulness, perception, and use of language not subject to cross-examination.” Commonwealth v. DelValle, 351 Mass. at 491, 221 N.E.2d at 923.
Evidence Admitted for Nonhearsay Purpose. “The hearsay rule forbids only the testimonial use of reported statements.” Commonwealth v. Miller, 361 Mass. 644, 659, 282 N.E.2d 394, 404 (1972). Accord Commonwealth v. Fiore, 364 Mass. 819, 824, 308 N.E.2d 902, 907 (1974), quoting Wigmore, Evidence § 1766 (3d ed. 1940) (out-of-court utterances are hearsay only when offered “for a special purpose, namely, as assertions to evidence the truth of the matter asserted”). Thus, when out-of-court statements are offered for a reason other than to prove the truth of the matter asserted or when they have independent legal significance, they are not hearsay. See, e.g., Commonwealth v. Montanez, 439 Mass. 441, 447–448, 788 N.E.2d 954, 960–961 (2003) (evidence of victim’s statement to her friend was properly admitted to establish victim’s state of mind [fear of defendant], which helped explain her delay in reporting an episode of sexual abuse and thus was not hearsay; “[s]tatements may be offered as evidence of state of mind without implicating the hearsay rule if the statements either do not contain assertions or are offered without regard to whether the assertions are true”); Commonwealth v. McLaughlin, 431 Mass. 241, 246, 726 N.E.2d 959, 964 (2000) (“[e]vidence of the terms of that oral agreement was not offered for the truth of the matters asserted, but as proof of an ‘operative’ statement, i.e., existence of a conspiracy”); Commonwealth v. Miller, 361 Mass. at 659, 282 N.E.2d at 403–404 (out-of-court statements are admissible when offered to explain why the police approached the defendant to avoid the misimpression that the police acted arbitrarily in singling out the defendant for investigation); Charette v. Burke, 300 Mass. 278, 280–281, 15 N.E.2d 194, 195–196 (1938) (father’s remark to a child before leaving the child to go into the house [“Wait where you are while I go inside to get you a cookie”] was a “verbal act” and not hearsay); Weeks v. Boston Elevated Ry. Co., 190 Mass. 563, 564–565, 77 N.E. 654, 654–655 (1906) (witness permitted to testify that decedent remarked that the “carriage never rode so hard before”; utterance about a present condition is not hearsay because it is not an assertion, unlike a narration, about past pain); Shimer v. Foley, Hoag & Eliot, LLP, 59 Mass. App. Ct. 302, 310, 795 N.E.2d 599, 605–606 (2003) (evidence of the terms of a contract used to establish lost profits is not hearsay because it is not an assertion); Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 529 n.5, 510 N.E.2d 773, 778 n.5 (1987) (instructions given to the plaintiff by bank examiners about how to handle a problem were not assertions and thus not hearsay). Cf. Commonwealth v. Daley, 55 Mass. App. Ct. 88, 94 n.9, 769 N.E.2d 322, 328 n.9 (2002) (a passerby’s remark [“Hey, are you all right?”], if offered as an assertion that the victim was in distress, would be hearsay, but if offered to explain why the defendant fled, and thus not as an assertion, would not be hearsay), S.C., 439 Mass. 558, 789 N.E.2d 1070 (2003). Contrast Commonwealth v. Todd, 394 Mass. 791, 797, 477 N.E.2d 999, 1004 (1985) (explaining that the destruction of her marriage license could be considered “an extrajudicial, nonverbal assertion of the victim’s intent which, if introduced for the truth of the matter asserted, would be, on its face, objectionable as hearsay”); Bartlett v. Emerson, 73 Mass. 174, 175–176 (1856) (testimony about another person’s act of pointing out a boundary marker was an assertion of a fact and thus inadmissible as hearsay); Commonwealth v. Ramirez, 55 Mass. App. Ct. 224, 227, 770 N.E.2d 30, 33–34 (2002) (a business card offered to establish a connection between the defendant and a New York address on the card was hearsay because it was used as an assertion of a fact); Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 229–230, 654 N.E.2d 938, 942 (1995) (conduct of a police officer who served a restraining order on the defendant offered to establish the identity of that person as the perpetrator was hearsay because its probative value depended on the truth of an assertion made in the papers by the victim that the defendant was the same person named in the complaint).
When an out-of-court statement is offered for a nonhearsay purpose, after considering the effectiveness of a Section 105 limiting instruction it is necessary to weigh the risk of unfair prejudice that would likely result if the jury misused the statement. See Section 403, Grounds for Excluding Relevant Evidence. In criminal cases, that risk can have confrontation clause implications.
Cross-Reference: Section 105, Limited Admissibility; Section 803(3)(B)(ii), Hearsay Exceptions; Availability of Declarant Immaterial: Then-Existing Mental, Emotional, or Physical Condition.
Subsection (d). This subsection addresses out-of-court statements that are admissible for their truth. Section 613, Prior Statements of Witnesses, Limited Admissibility, addresses prior statements for the limited purposes only of impeachment and rehabilitation.
Subsection (d)(1)(A). Massachusetts generally adheres to the orthodox rule that prior inconsistent statements are admissible only for the limited purpose of impeaching the credibility of a witness’s testimony at trial and are inadmissible hearsay when offered to establish the truth of the matters asserted. See Section 613(a)(1), Prior Inconsistent Statements: Examining Own Witness, and Section 613(a)(2), Prior Statements of Witnesses, Limited Admissibility: Prior Inconsistent Statements: Examining Other Witness. However, in Commonwealth v. Daye, 393 Mass. 55, 66, 469 N.E.2d 483, 490–491 (1984), the Supreme Judicial Court adopted the principles of Proposed Mass. R. Evid. 801(d)(1)(A) allowing prior inconsistent statements made before a grand jury to be admitted substantively. The Daye rule has been extended to cover prior inconsistent statements made in other proceedings as well. See Commonwealth v. Sineiro, 432 Mass. 735, 740 N.E.2d 602 (2000) (probable cause hearings); Commonwealth v. Newman, 69 Mass. App. Ct. 495, 868 N.E.2d 946 (2007) (testimony given at an accomplice’s trial). Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 823 n.9, 894 N.E.2d 1147, 1154 n.9 (2008), made it clear in dicta that the same principles would apply to admission of prior inconsistent deposition evidence given under oath. See also Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 64, 935 N.E.2d 327, 329 (2010) (prior inconsistent statement may be admissible for its full probative value where the witness has signed a written affidavit under penalties of perjury in support of an application for a restraining order pursuant to G. L. c. 209A and that witness is subject to cross-examination).
Two general requirements for the substantive use of such statements are (1) that there is an opportunity to cross-examine the declarant and (2) that the prior testimony was in the declarant’s own words and was not coerced. In addition, if the prior inconsistent statement is relied on to establish an essential element of a crime, the Commonwealth must offer at least some additional evidence on that element in order to support a conclusion of guilt beyond a reasonable doubt. Commonwealth v. Daye, 393 Mass. at 73–75, 469 N.E.2d at 494–496. However, the additional evidence need not be sufficient in itself to establish the element. Commonwealth v. Noble, 417 Mass. 341, 345 & n.3, 629 N.E.2d 1328, 1330 & n.3 (1994). The corroboration requirement thus concerns the sufficiency of the evidence, not its admissibility. Commonwealth v. Clements, 436 Mass. 190, 193, 763 N.E.2d 55, 58 (2002); Commonwealth v. Ragland, 72 Mass. App. Ct. 815, 823, 894 N.E.2d 1147, 1154 (2008).
Feigning Lack of Memory. Upon a determination by the judge that a witness is feigning lack of memory, a prior statement may be admitted substantively as inconsistent with the claimed lack of memory, subject to the requirements of this subsection, Subsection 801(d)(1)(A). Commonwealth v. Sineiro, 432 Mass. 735, 745, 740 N.E.2d 602, 607–608 (2000). Before the prior statement may be admitted substantively, the judge must make a preliminary finding of fact under Section 104(a), Preliminary Questions: Determinations Made by the Court, that the witness is feigning an inability to remember. Commonwealth v. Evans, 439 Mass. 184, 190, 786 N.E.2d 375, 383 (2003). If supported by evidence, this finding is conclusive. Id. At a party’s request, the judge may conduct a voir dire to make such a finding. Commonwealth v. Sineiro, 432 Mass. at 739, 740 N.E.2d at 606. A judge’s finding of witness feigning is often based on a careful examination of the witness’s demeanor and testimony in light of the judge’s experience. See Id. at 740, 740 N.E.2d at 606; Commonwealth v. Newman, 69 Mass. App. Ct. 495, 497, 868 N.E.2d 946, 948 (2007). See, e.g., Commonwealth v. Figueroa, 451 Mass. 566, 573–574, 576–577, 887 N.E.2d 1040, 1046, 1048 (2008) (judge concluded that witness was feigning when he was able to recall many specific events of the evening in question but was unable to recall the portion of his grand jury testimony in which he said the defendant admitted to shooting someone, and a transcript failed to refresh his memory); Commonwealth v. Tiexeira, 29 Mass. App. Ct. 200, 204, 559 N.E.2d 408, 411 (1990) (judge observed how the witness’s detailed account of the evening was conspicuously vague regarding the defendant’s encounter with the victim). Regardless of the judge’s conclusion at voir dire, the jury shall not be told of the judge’s preliminary determination that the witness is feigning. Commonwealth v. Sineiro, 432 Mass. at 742 n.6, 740 N.E.2d at 608 n.6.
Cross-Reference: Section 613, Prior Statements of Witnesses, Limited Admissibility.
Subsection (d)(1)(B). In Commonwealth v. Cruz, 53 Mass. App. Ct. 393, 401 & n.10, 759 N.E.2d 723, 731–732 & n.10 (2001), the Appeals Court noted that the Supreme Judicial Court has not adopted Proposed Mass. R. Evid. 801(d)(1)(B) as to the admission of prior consistent statements as substantive evidence, rather than merely for the purpose of rehabilitating the credibility of a witness-declarant who has been impeached on the ground that his or her trial testimony is of recent contrivance. See also Commonwealth v. Thomas, 429 Mass. 146, 161–162, 706 N.E.2d 669, 680 (1999) (prior consistent statement admissible to rebut suggestion of recent contrivance); Commonwealth v. Kater, 409 Mass. 433, 448, 567 N.E.2d 885, 894 (1991) (“prior consistent statements of a witness may be admitted where the opponent has raised a claim or inference of recent contrivance, undue influence, or bias”); Commonwealth v. Zukoski, 370 Mass. 23, 26–27, 345 N.E.2d 690, 693 (1976) (“a witness’s prior consistent statement is admissible where a claim is made that the witness’s in-court statement is of recent contrivance or is the product of particular inducements or bias. . . . Unless admissible on some other ground to prove the truth of the facts asserted, such a prior consistent statement is admissible only to show that the witness’s in-court testimony is not the product of the asserted inducement or bias or is not recently contrived as claimed”).
Cross-Reference: Section 413, First Complaint of Sexual Assault.
Subsection (d)(1)(C). This subsection is derived from Commonwealth v. Cong Duc Le, 444 Mass. 431, 432, 436–437, 828 N.E.2d 501, 503, 506 (2005), where the Supreme Judicial Court “adopt[ed] the modern interpretation of the rule” expressed in Proposed Mass. R. Evid. 801(d)(1)(C), which, like its Federal counterpart, states that “[a] statement is not hearsay . . . if ‘[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . one of identification of a person [made] after perceiving [the person].’” It is not necessary that the declarant make an in-court identification. See Commonwealth v. Machorro, 72 Mass. App. Ct. 377, 379–380, 892 N.E.2d 349, 351–352 (2008) (police officer allowed to testify to extrajudicial identification of the assailant by two victims who were present at trial and subject to cross-examination even though one victim could not identify the assailant [although she recalled being present at his arrest and was certain that the person arrested was the assailant] and the other victim was not asked to make an identification at trial). This subsection applies to an out-of-court identification based on a witness’s familiarity with the person identified and is not limited to a photographic array, showup, or other identification procedure. Commonwealth v. Adams, 458 Mass. 766, 770–776, 941 N.E.2d 1127, 1130–1134 (2011). Multiple versions of an extrajudicial identification may be admissible for substantive purposes. Id. at 773, 941 N.E.2d at 1132.
Under this subsection, whether and to what extent third-party testimony about a witness’s out-of-court identification may be admitted in evidence no longer turns on whether the identifying witness acknowledges or denies the extrajudicial identification at trial. See Commonwealth v. Cong Duc Le, 444 Mass. at 439–440, 828 N.E.2d at 507–509. The third-party testimony will be admitted for substantive purposes, as long as the cross-examination requirement is satisfied. Id. As the court explained, it is for the jury to “determine whose version to believe—the witness who claims not to remember or disavows the prior identification (including that witness’s version of what transpired during the identification procedure), or the observer who testifies that the witness made a particular prior identification.” Id. at 440, 828 N.E.2d at 508. The court concluded that
“evidence of the prior identification will be considered along with all the other evidence that bears on the issue of the perpetrator’s identity. The mere fact that the prior identification is disputed in some manner does not make it unhelpful to the jury in evaluating the over-all evidence as to whether the defendant on trial was the one who committed the charged offense.”
Facts Accompanying an Identification. In Commonwealth v. Adams, 458 Mass. 766, 772, 941 N.E.2d 1127, 1132 (2011), the Supreme Judicial Court held as follows:
“Absent context, an act or statement of identification is meaningless. . . . [I]dentification evidence must be accompanied either by some form of accusation relevant to the issue before the court, or some form of exclusionary statement, in order to be relevant to the case. The extent of the statement needed to provide context will vary from case to case . . . . We emphasize that the rule [is] not intended to render a witness’s entire statement admissible but only so much as comprises relevant evidence on the issue of identification.”
This issue should be the subject of a motion in limine. See also Commonwealth v. Walker, 460 Mass. 590, 608–609, 953 N.E.2d 195, 211 (2011).
Subsection (d)(2). This subsection defines admissions by a party-opponent as not hearsay, consistent with recent Supreme Judicial Court decisions, the Federal Rules of Evidence, and the Proposed Massachusetts Rules of Evidence. See Commonwealth v. Mendes, 441 Mass. 459, 467, 806 N.E.2d 393, 402 (2004); Commonwealth v. Allison, 434 Mass. 670, 676 n.5, 751 N.E.2d 868, 880 n.5 (2001); Commonwealth v. DiMonte, 427 Mass. 233, 243, 692 N.E.2d 45, 52 (1998), citing Proposed Mass. R. Evid. 801(d)(2); Fed. R. Evid. 801(d)(2); Proposed Mass. R. Evid. 801(d)(2). In some cases, the court has ruled that out-of-court statements by a party-opponent are admissible as an exception to the hearsay rule. See Commonwealth v. DeBrosky, 363 Mass. 718, 724, 297 N.E.2d 496, 501 (1973); Commonwealth v. McKay, 67 Mass. App. Ct. 396, 403 n.13, 853 N.E.2d 1098, 1103 n.13 (2006).
Subsection (d)(2)(A). This subsection is derived from Commonwealth v. Marshall, 434 Mass. 358, 365–366, 749 N.E.2d 147, 155 (2001), quoting P.J. Liacos, Massachusetts Evidence § 8.8.1 (7th ed. 1999). See also Commonwealth v. McCowen, 458 Mass. 461, 485–486, 939 N.E.2d 735, 757–758 (2010) (defendant’s out-of-court statement offered for its truth is hearsay and not admissible when not offered by the Commonwealth); Care & Protection of Sophie, 449 Mass. 100, 110 n.14, 865 N.E.2d 789, 798 n.14 (2007) (no requirement that the statement of a party-opponent be contradictory or against the party-opponent’s interest); Commonwealth v. Bonomi, 335 Mass. 327, 347, 140 N.E.2d 140, 156 (1957) (“An admission in a criminal case is a statement by the accused, direct or implied, of facts pertinent to the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his guilt”); Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 613, 724 N.E.2d 336, 346 (2000) (“The evidence of [the defendant’s] admission to sufficient facts was admissible as an admission of a party opponent.”); Section 410, Inadmissibility of Pleas, Offers of Pleas, and Related Statements. Compare Commonwealth v. Nawn, 394 Mass. 1, 4, 474 N.E.2d 545, 549 (1985) (The “longstanding rule [is] that if a defendant is charged with a crime and unequivocally denies it, that denial is not admissible in evidence.”), with Commonwealth v. Lavalley, 410 Mass. 641, 649, 574 N.E.2d 1000, 1006 (1991) (“It is well-settled that false statements made by a defendant are admissible to show consciousness of guilt.”). In Lavalley, the Supreme Judicial Court stated that the Commonwealth could show that a defendant’s failure to include certain facts in his pretrial statement to the police that the defendant included in his testimony at trial was evidence of his consciousness of guilt and did not amount to an impermissible comment on his denial or failure to deny the offense. Id. at 649–650, 574 N.E.2d at 1005–1006.
Under this subsection, deposition answers by an opposing party, Mass. R. Civ. P. 32(a)(2), interrogatory answers by an opposing party, G. L. c. 231, § 89, and responses to requests for admission of facts, Mass. R. Civ. P. 36(b), are not subject to a hearsay objection. See Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 460–461, 854 N.E.2d 448, 454–455 (2006); Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 484 n.8, 738 N.E.2d 753, 759 n.8 (2000).
Criminal Cases. The principle that the admission of a party-opponent, without more, is admissible is superceded by the requirements of the confrontation clause:
“[W]here a nontestifying codefendant’s statement expressly implicates the defendant, leaving no doubt that it would prove to be powerfully incriminating, the confrontation clause of the Sixth Amendment to the United States Constitution has been offended, notwithstanding any limiting instruction by the judge that the jury may consider the statement only against the codefendant.”
Commonwealth v. Vallejo, 455 Mass. 72, 83, 914 N.E.2d 22, 31 (2009) (discussing Bruton v. United States, 391 U.S. 123 (1968)). See also Commonwealth v. Vasquez, 462 Mass. 827, 842–844, 971 N.E.2d 783, 797–798 (2012) (statement made by nontestifying defendant to police admissible where statement did not expressly or “obviously” refer directly to defendant).
Subsection (d)(2)(B). This subsection is taken verbatim from Fed. R. Evid. 801(d)(2)(B) and is consistent with Massachusetts law. See also Proposed Mass. R. Evid. 801(d)(2)(B). “Where a party is confronted with an accusatory statement which, under the circumstances, a reasonable person would challenge, and the party remains silent or responds equivocally, the accusation and the reply may be admissible on the theory that the party’s response amounts to an admission of the truth of the accusation.” Commonwealth v. MacKenzie, 413 Mass. 498, 506, 597 N.E.2d 1037, 1043 (1992). Accord Commonwealth v. Braley, 449 Mass. 316, 320–321, 867 N.E.2d 743, 749–750 (2007); Zucco v. Kane, 439 Mass. 503, 507–508, 789 N.E.2d 115, 118–119 (2003); Commonwealth v. Silanskas, 433 Mass. 678, 694, 746 N.E.2d 445, 461 (2001). This is commonly referred to as an “adoptive admission.”
Admission by Silence. For an admission by silence to be admissible it must be apparent that the party has heard and understood the statement, had an opportunity to respond, and the context was one in which the party would have been expected to respond. Commonwealth v. Olszewski, 416 Mass. 707, 719, 625 N.E.2d 529, 537 (1993), cert. denied, 513 U.S. 835 (1994). See Leone v. Doran, 363 Mass. 1, 16, 292 N.E.2d 19, 31, modified on other grounds, 363 Mass. 886, 297 N.E.2d 493 (1973). “Because silence may mean something other than agreement or acknowledgment of guilt (it may mean inattention or perplexity, for instance), evidence of adoptive admissions by silence must be received and applied with caution.” Commonwealth v. Babbitt, 430 Mass. 700, 705, 723 N.E.2d 17, 22 (2000). See generally Commonwealth v. Nickerson, 386 Mass. 54, 61 n.6, 434 N.E.2d 992, 996 n.6 (1982) (cautioning against the use of a defendant’s prearrest silence to show consciousness of guilt and indicating such evidence is admissible only in “unusual circumstances”). Accordingly, adoption by silence can be imputed to a defendant only for statements that “clearly would have produced a reply or denial on the part of an innocent person.” Commonwealth v. Brown, 394 Mass. 510, 515, 476 N.E.2d 580, 583 (1985).
“No admission by silence may be inferred, however, if the statement is made after the accused has been placed under arrest[, see Commonwealth v. Kenney, 53 Mass. 235, 238 (1847); Commonwealth v. Morrison, 1 Mass. App. Ct. 632, 634, 305 N.E.2d 518, 520 (1973); Commonwealth v. Cohen, 6 Mass. App. Ct. 653, 657, 382 N.E.2d 1105, 1108–1109 (1978)], after the police have read him his Miranda rights[, see Commonwealth v. Rembiszewski, 363 Mass. 311, 316, 293 N.E.2d 919, 923 (1973)], or after he has been so significantly deprived of his freedom that he is, in effect, in police custody[, see Commonwealth v. Corridori, 11 Mass. App. Ct. 469, 480, 417 N.E.2d 969, 977 (1981)].”
Commonwealth v. Stevenson, 46 Mass. App. Ct. 506, 510, 707 N.E.2d 385, 388 (1999), quoting Commonwealth v. Ferrara, 31 Mass. App. Ct. 648, 652, 852 N.E.2d 961, 964 (1991).
Admission by Conduct. “An admission may be implied from conduct as well as from words.” Commonwealth v. Bonomi, 335 Mass. 327, 348, 140 N.E.2d 140, 156 (1957). For instance,
“[a]ctions and statements that indicate consciousness of guilt on the part of the defendant are admissible and together with other evidence, may be sufficient to prove guilt. . . . [T]his theory usually has been applied to cases where a defendant runs away . . . or makes intentionally false and misleading statements to police . . . or makes threats against key witnesses for the prosecution . . . .”
Commonwealth v. Montecalvo, 367 Mass. 46, 52, 323 N.E.2d 888, 892 (1975). See also Olofson v. Kilgallon, 362 Mass. 803, 806, 291 N.E.2d 600, 602–603 (1973), citing Hall v. Shain, 291 Mass. 506, 512–513, 197 N.E. 437, 440 (1935). For a thorough discussion of the evidentiary and constitutional issues surrounding the use of a defendant’s prearrest silence or conduct to establish consciousness of guilt, see Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 648–656, 893 N.E.2d 414, 419–424 (2008). “[A] judge should instruct the jury  that they are not to convict a defendant on the basis of evidence of [conduct] alone, and  that they may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant” (citation omitted). Commonwealth v. Toney, 385 Mass. 575, 585, 433 N.E.2d 425, 432 (1982).
Subsection (d)(2)(C). This subsection is derived from Sacks v. Martin Equip. Co., 333 Mass. 274, 279–280, 130 N.E.2d 547, 550 (1955).
This subsection covers the admissibility of statements by an agent who has been authorized by the principal to speak on his behalf. See Simonoko v. Stop & Shop, Inc., 376 Mass. 929, 929, 383 N.E.2d 505, 506 (1978) (concluding there was no showing of the manager’s authority to speak for the defendant). Contrast Section 801(d)(2)(D), Definitions: Statements Which Are Not Hearsay: Admission by Party-Opponent, which deals with statements of agents.
Subsection (d)(2)(D). This subsection is derived from Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 420–423, 517 N.E.2d 152, 154–156 (1988), in which the Supreme Judicial Court adopted Proposed Mass. R. Evid. 801(d)(2)(D).
To determine whether a statement qualifies as a vicarious admission, the judge first must decide as a preliminary question of fact whether the declarant was authorized to act on the matters about which he or she spoke. See Herson v. New Boston Garden Corp., 40 Mass. App. Ct. 779, 791, 667 N.E.2d 907, 916 (1996). If the judge finds that the declarant was so authorized, the judge must then decide whether the probative value of the statement was substantially outweighed by its potential for unfair prejudice. Id. In so doing,
“the judge should consider the credibility of the witness; the proponent’s need for the evidence, e.g., whether the declarant is available to testify; and the reliability of the evidence offered, including consideration of whether the statement was made on firsthand knowledge and of any other circumstances bearing on the credibility of the declarant. Ruszcyk v. Secretary of Pub. Safety, [401 Mass.] at 422–423, 517 N.E.2d 152, ” (footnote and quotation omitted).
Thorell v. ADAP, Inc., 58 Mass. App. Ct. 334, 339–340, 789 N.E.2d 1086, 1091 (2003).
Subsection (d)(2)(E). This subsection is derived from Commonwealth v. Bongarzone, 390 Mass. 326, 340, 455 N.E.2d 1183, 1192 (1983), which relied on Proposed Mass. R. Evid. 801(d)(2)(E) and the identical Fed. R. Evid. 801(d)(2)(E). See also Commonwealth v. Braley, 449 Mass. 316, 319–321, 867 N.E.2d 743, 749–750 (2007).
“This exception to the rule against hearsay is premised on a belief that ‘[t]he community of activities and interests which exists among the coventurers during the enterprise tends in some degree to assure that their statements about one another will be minimally reliable.’ Commonwealth v. White, 370 Mass. , 712, 352 N.E.2d 904 [(1976)].”
Commonwealth v. Bongarzone, 390 Mass. at 340, 455 N.E.2d at 1192.
The judge must be satisfied by a preponderance of admissible evidence other than the extrajudicial statement that a criminal joint venture existed between the declarant and the defendant. Commonwealth v. Silanskas, 433 Mass. 678, 692–693, 746 N.E.2d 445, 460 (2001), citing Commonwealth v. Cruz, 430 Mass. 838, 844, 724 N.E.2d 683, 689–690 (2000). See also Commonwealth v. McLaughlin, 431 Mass. 241, 246, 726 N.E.2d 959, 963–964 (2000). The judge is not required to make a preliminary finding that a joint criminal enterprise existed and may admit the evidence “subject to a later motion to strike if the prosecution fails to show that the defendant was part of a joint enterprise.” Commonwealth v. Colon-Cruz, 408 Mass. 533, 543–544, 562 N.E.2d 797, 806 (1990). The judge must also instruct the jury that they can only consider evidence of the hearsay statements if they find, on the basis of all the other evidence, not including the hearsay statements, that a joint venture existed. Commonwealth v. Boyer, 52 Mass. App. Ct. 590, 598, 755 N.E.2d 767, 773 (2001).
This exception extends to situations where “the joint venturers are acting to conceal the crime that formed the basis of the criminal enterprise[,]” Commonwealth v. Ali, 43 Mass. App. Ct. 549, 561, 684 N.E.2d 1200, 1208 (1997), quoting Commonwealth v. Angiulo, 415 Mass. 502, 519, 615 N.E.2d 155, 166 (1993), but it “does not apply after the criminal enterprise has ended, as where a joint venturer has been apprehended and imprisoned.” Commonwealth v. Colon-Cruz, 408 Mass. at 543, 562 N.E.2d at 806. Thus, a confession or admission of a coconspirator or joint venturer made after the termination of the conspiracy or joint venture is not admissible as a vicarious statement of another member of the conspiracy or joint venture. Commonwealth v. Bongarzone, 390 Mass. at 340 n.11, 455 N.E.2d at 1192 n.11, citing Commonwealth v. White, 370 Mass. at 708–712, 352 N.E.2d at 908–910. Cf. Commonwealth v. Leach, 73 Mass. App. Ct. 758, 766, 901 N.E.2d 708, 715–716 (2009) (although statements made by codefendants occurred after they were in custody, statements were made shortly after the crime and for the purpose of concealing the crime and thus became admissible against each defendant).